A federal appeals court on Nov. 12 kept in place its "stay" against the Occupational Safety and Health Administration (OSHA’s) mandate that all large employers require their workers to get vaccinated or submit to weekly testing starting in January.
[Federal Appeal’s Court Halts Biden Administration’s Vaccine Requirement]
The court's full opinion can be found here.
The Nov. 12 ruling was issued by the same court (the 5th Circuit Court of Appeals in New Orleans) that issued a temporary stay pending further proceedings just two days after the mandate was announced. This new ruling is far more consequential and indicative of a difficult path forward for the OSHA mandate, although it is by no means the final decision and there remains a reasonable possibility that the mandate will ultimately survive.
The temporary stay did not assess the substantive merits of the case against the OSHA mandate; it simply said that the plaintiffs in the case appeared to have a likelihood of success and that pending further analysis, the mandate could not be enforced.
The Nov. 12 ruling included a substantive legal analysis of the OSHA mandate and found it to be unlawful. It explicitly instructed OSHA not to take any further steps to implement or enforce the mandate.
The court said that the OSHA mandate imposes a financial burden on businesses: "The Mandate imposes a financial burden upon them by deputizing their participation in OSHA's regulatory scheme, exposes them to severe financial risk if they refuse or fail to comply, and threatens to decimate their workforces (and business prospects) by forcing unwilling employees to take their shots, take their tests, or hit the road."
It is not the final word on this matter. In the coming days a "judicial lottery" will take place that will consolidate the various legal challenges to the vaccine mandate before a single appeals court. That court may be different from the appeals court that ruled against the mandate yesterday. Any ruling from the appeals court that ultimately hears the consolidated cases would likely be appealed to the Supreme Court.
The case that was decided Nov. 12 was brought by a number of Republican states that opposed the mandate on constitutional grounds. It is different than the lawsuit that the National Federation of Independent Businesses (NFIB) filed earlier this week along with a handful of other trade associations representing the employer community. Both cases will likely ultimately be consolidated into a single case that will be heard by a single appeals court in the coming weeks.
NATSO is actively engaging with various plaintiffs in the NFIB lawsuit to ensure that our industry's perspective is well represented. NATSO continues to evaluate all options to ensure that we have the ability to convey the challenges that travel centers will have in implementing the mandate, and the adverse consequences that these difficulties will have on the broader supply chain.
Although the vaccine mandate could still be enforced if it survives the various legal challenges it is facing, the Nov. 12 ruling could push back the current Jan. 4, 2022, date when OSHA says it will begin enforcing the mandate. All NATSO members with 100 or more employers should continue preparing to comply with the mandate by Jan. 4, 2022, recognizing that even if the mandate survives there will likely be some extra time to come into compliance.
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